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The Next Religious Freedom Case Presents an Opportunity to Erase One of the Court’s Mistakes

Gerald Groff is a strict Sabbatarian Christian who observes as a sacred obligation keeping the Sabbath day holy and avoiding work, in accordance with in the Book of Exodus. The postal service, with its lack of Sunday delivery, provided an attractive option for employment. So Groff took a non-career position in a rural area covering career postal employees when they were absent.

The new location began Sunday delivery in 2017. Groff managed for a period of time to be accommodated by those setting the Sunday schedule, but the accommodation eventually disappeared, giving way to disciplinary action for refusal to work on Sundays. Realizing that termination was the next disciplinary action that awaited him, he resigned in early 2019.

Religion is one of the categories protected from employment discrimination by Title VII of the Civil Rights Act of 1964—the basis for Groff’s pending lawsuit against the postal service. A 1972 amendment of Title VII defined religion expansively to clarify employers’ obligation to accommodate “all aspects of” employees’ “religious observance and practice” unless doing so would inflict “undue hardship on the conduct of the employer’s business.”

Yet just a few years later, the Supreme Court stated in Trans World Airlines v. Hardison that an “undue hardship” is established when an accommodation would require an employer “to bear more than a de minimis cost.” The Court in that case was considering a Sabbath observer’s termination prior to the passage of the 1972 amendment, so this language is arguably dictum regarding that provision’s meaning. Nonetheless, lower courts would apply Hardison in a way that overwhelmingly sided with employers whenever an accommodation would impose any burden.

Adding insult to injury in Groff’s case, the record includes an admission by the last postmaster under whom Groff worked that accommodating his Sabbath obligation “does not show a hardship/burden to the USPS.” But the postmaster viewed that reality as a “dilemma” to be solved by manufacturing a pretext for disciplinary action. The postal service maintained that Groff’s Sunday absences burdened his coworkers and prevailed both in the district court and on a divided panel of the Third Circuit. Judge Thomas Hardiman, in dissent, pointed out that the majority’s standard “renders any burden on employees sufficient to establish undue hardship, effectively subjecting Title VII religious accommodation to a heckler’s veto by disgruntled employees.” The Supreme Court will hear oral argument in Groff v. DeJoy tomorrow.

The standard for which Groff argues would define an “undue hardship” as “one that imposes significant costs or difficulties on the employer,” which is consistent with other civil rights statutes that have an “undue hardship” standard. Moreover, the plain meaning of “undue hardship on the conduct of the employer’s business” would not predicate such hardship on a showing that relies solely on burdens to an employee’s coworkers, as opposed to the business itself. Indeed, virtually every accommodation for one employee imposes on other employees to some degree.

Dictum or not, the Hardison de minimis rule is likely to be rejected by at least three Supreme Court justices who are already on record criticizing it: Justices Clarence ThomasSamuel Alito, and Neil Gorsuch. Interestingly, this case presents the prospect of today’s textualists making common cause with the dissenters in Hardison—a 7–2 decision in which the dissent came from the liberal bloc of the time. Justice Thurgood Marshall, joined by William Brennan, criticized the majority in words cited years later by Gorsuch in a dissent from denial of certiorari: The de minimis test is inconsistent with the “plain words” of Title VII, defies “simple English usage,” and “effectively nullif[ies]” the statute.

That, especially against the backdrop of the Court’s streak of decisions in recent years protecting religious freedom and expression, bodes well for Groff’s claim. Marshall’s dissent had lamented, “All Americans will be a little poorer until today’s decision is erased.” Forty-six years later, a textualist Supreme Court offers the best hope of bringing about that long overdue erasure